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21-P-1007 Appeals Court

COMMONWEALTH vs. ROBERT GARDNER.

No. 21-P-1007.

Middlesex. September 9, 2022. – February 15, 2023.

Present: Shin, Hand, & Brennan, JJ.

Rape. Assault and Battery. Assault and Battery by Means of a 

Dangerous Weapon. Stalking. Protective Order. 

Intimidation of Witness. Husband and Wife, Rape.

Practice, Criminal, Required finding, Discovery, New trial, 

Assistance of counsel, Hearsay, Argument by prosecutor.

Evidence, Medical record, Telephone conversation, Verbal 

completeness.

Indictments found and returned in the Superior Court 

Department on September 11, 2015, and August 17, 2017.

The cases were tried before Robert L. Ullmann, J., a 

postconviction motion for discovery and funds was heard by him,

and a motion for a new trial was heard by him.

Dennis Shedd for the defendant.

Ryan J. Rall, Assistant District Attorney, for the 

Commonwealth.

BRENNAN, J. A Superior Court jury convicted the defendant, 

Robert Gardner, of aggravated rape, assault and battery causing 
2

serious bodily injury, assault and battery by means of a 

dangerous weapon causing serious bodily injury (two counts), 

assault and battery on a family or household member (two 

counts), stalking, violation of a restraining order, and 

intimidation of a witness.1 The offenses were committed against 

his former wife, spanned over half a decade, and resulted in 

significant physical injuries to the victim at various times,

including a fractured back, a broken nose, and a fractured 

skull. This physical violence was underpinned by emotional 

manipulation of the victim, and frequently manifested in the 

defendant's pressure on her to recant her allegations and assert 

her marital privilege not to testify against him.

We consider the defendant's appeals from his convictions, 

the order denying his postconviction motion for discovery and 

funds, and the order denying in part his motion for a new trial 

based on his claims of ineffective assistance of trial counsel.2

1 The jury acquitted the defendant of a second count of 

aggravated rape, rape, assault with intent to rape (two counts), 

and a second count of intimidation of a witness. A related 

charge of cruelty to animals was dismissed prior to trial.

2 The defendant contended that his trial counsel was 

ineffective for a variety of reasons. After a nonevidentiary 

hearing, the judge agreed with the defendant on one of these 

arguments -- that counsel was ineffective in failing to request

an instruction defining "substantial emotional distress" -- and 

thus granted a new trial on the intimidation of a witness 

conviction. The judge otherwise denied the defendant's motion. 

The Commonwealth did not appeal from the partial allowance of 

the motion for a new trial.
3

Concluding that (1) there was sufficient evidence of witness 

intimidation to support the defendant's conviction, (2) there 

was no error in the admission at trial of a recorded telephone 

conversation between the defendant and his father, (3) the 

denial of the defendant's postconviction request for discovery 

and funds was not an abuse of the judge's discretion, and (4) 

trial counsel was not ineffective, we affirm.

1. Background. The defendant and the victim began dating 

in 2004, married in 2009, and ultimately divorced in 2017. Less 

than one year into their relationship the defendant became 

physically and sexually abusive toward the victim. Thereafter, 

the defendant frequently was violent toward her, although the 

victim rarely reported his abuse. 

The first reported incident of abuse occurred on August 7, 

2008. According to the victim, after she refused the 

defendant's demand for sex, he held her cat against the wall by 

its throat, hit the victim, and raped her.3 The victim reported 

to police what the defendant had done to her cat but was "too 

scared" to disclose the sexual assault. The defendant soon 

convinced the victim that the incident was her fault, and she 

wrote a letter to him apologizing "for the court case[] that I 

3 The defendant was acquitted of the rape charge relating to 

this incident.
4

have you involved in." The victim later provided an affidavit 

to the prosecutor, written by the defendant, then copied and 

signed by the victim, requesting that the charges be dismissed. 

The next reported assault took place on February 20, 2011. 

After a night of arguing, the defendant and the victim began to 

have consensual sex. When the victim tried to stop the sexual 

interaction, the defendant pushed her down and hit her 

repeatedly. Although she called the police, the victim 

initially reported only the physical abuse, because she was 

"[still] too scared" to report the sexual assault. As a result 

of this attack, she suffered swelling and bruising on her head, 

pain in her ribs, vaginal bleeding, and a broken vertebra. 

The victim obtained a restraining order against the 

defendant in conjunction with this assault. Shortly after the 

order issued, the defendant violated it. The victim reported 

the restraining order violation to police and the defendant was 

charged in the District Court. Subsequently, the victim 

submitted an affidavit to the District Court, drafted by the 

defendant's attorney, asking that the criminal cases against the 

defendant be dismissed. 

On October 2, 2014, an argument between the victim and 

defendant escalated into a physical assault in which the 

defendant broke the victim's nose. The victim called police and 

the defendant was arrested. Over the next several months, the 
5

defendant repeatedly tried to convince the victim to retract 

those allegations of domestic violence. He was angry with the 

victim and told her the incident was not his fault, but instead 

was a result of her mental illness. One such conversation in 

March 2015 erupted into another violent incident that resulted 

in the defendant's arrest.4 While held in custody on that 

matter, the defendant told the victim to get him out of jail,

directed her to call his attorney, and instructed her to obtain 

letters from her psychiatrist to support her recantation of the 

allegations against him. Ultimately, the victim provided the 

District Court with a letter from her psychiatrist and indicated 

that she did not want to cooperate with prosecution. The 

charges in the District Court were dismissed at the victim's 

request.

On June 3, 2015, after the victim refused the defendant's

demand for sex, the defendant threw an object at the victim, 

striking her in the head and fracturing her skull. After 

calling 911, the victim passed out in the street. The victim 

went by ambulance to the hospital, where she underwent a 

craniotomy to remove a blood clot and relieve pressure on her 

brain. 

4 The March 2015 incident was not the subject of an 

indictment in this case.
6

After her release from the hospital, the victim lived in 

New Hampshire. On July 24, 2015, she rented a motel room in 

Tewksbury and agreed to see the defendant. The victim initially

consented to have sex with the defendant, but when she told him 

to stop, they argued. The defendant disabled the telephone in 

the motel room (motel phone) so that the victim could not call 

for help. Over the next few hours, the defendant repeatedly 

raped the victim vaginally and forced his penis into her mouth. 

When the victim yelled at him to stop, the defendant put his 

hand over her mouth to keep her quiet, which caused the victim 

to struggle to breathe. When the victim tried to leave, the 

defendant stood in front of the door and locked it. At some 

point, the victim got her cell phone and dialed 911. She turned

on the cell phone speaker and the defendant made several 

whispered threats, including that he was going to kill her and

her daughter. The defendant fled before police arrived. 

When police arrived, the victim was crying and shaking. 

She had bruising and swelling on her face, her mouth was 

bleeding, and the room was in disarray with the motel phone 

ripped off the wall. Although initially reluctant to seek 

treatment, the victim went to the hospital later that day. A

sexual assault nurse examiner (SANE) documented numerous 

injuries and bruising all over the victim's body. 
7

Shortly after her release from the hospital, the victim 

spoke to the defendant. The police had not yet arrested the 

defendant and, despite the most recent attack, the victim did 

not want them to do so because she still loved him. The 

defendant told the victim that to avoid his prosecution they

should run away and stay elsewhere for several years. The 

defendant and victim left Massachusetts together the following 

day, but a police task force eventually located them in New 

Jersey. Immediately after his arrest, the defendant began to 

exhort the victim from the holding cell to support him: "We're 

strong, we know how to do this . . . we just got to do what we 

have to do to be strong." 

The defendant was returned to Massachusetts and 

subsequently charged in Superior Court in indictments that 

encompassed the victim's allegations of abuse from 2011 through 

2015. While in custody awaiting trial, he sent letters to the 

victim. As a result of his sending those letters, the defendant 

was charged in a separate indictment with intimidation of a 

witness. All the indictments were joined for trial. 

2. Discussion. a. Direct appeal. i. Sufficiency of 

evidence of intimidation of a witness. The defendant was 

convicted of one count of intimidation of a witness. His first 

challenge on appeal is to the judge's denial of his motion for a 

required finding of not guilty as to that indictment. When 
8

reviewing the denial of a motion for a required finding of not 

guilty, "we consider the evidence introduced at trial in the 

light most favorable to the Commonwealth, and determine whether 

a rational trier of fact could have found the essential elements 

of the crime beyond a reasonable doubt." Commonwealth v. 

Oberle, 476 Mass. 539, 547 (2017). "The inferences that support 

a conviction 'need only be reasonable and possible; [they] need 

not be necessary or inescapable.'" Commonwealth v. Waller, 90 

Mass. App. Ct. 295, 303 (2016), quoting Commonwealth v. Woods, 

466 Mass. 707, 713, cert. denied, 573 U.S. 937 (2014). 

The elements required to prove intimidation of a witness 

are that the defendant (1) willfully; (2) threatened, 

intimidated, or harassed; (3) a witness "in a criminal 

proceeding of any type; (4) with the intent to impede or 

interfere with a criminal investigation or proceeding." 

Commonwealth v. Nordstrom, 100 Mass. App. Ct. 493, 499-500 

(2021). See G. L. c. 268, § 13B. The defendant argues that 

there was insufficient evidence that the defendant threatened, 

intimidated, or harassed the victim. Although we agree that the 

defendant did not explicitly threaten the victim, we conclude 

that there was sufficient evidence to support a conviction of 

witness intimidation either by intimidation or by harassment.

As relevant here, "intimidation" means "acts or words that 

would instill fear in a reasonable person." Commonwealth v. 
9

Rivera, 76 Mass. App. Ct. 530, 535 (2010). See Commonwealth v. 

Perez, 460 Mass. 683, 703 (2011). The Commonwealth's evidence 

demonstrated that the parties' lengthy relationship was 

punctuated by cycles of the defendant abusing, supporting, 

blaming, "gaslighting,"5 and pressuring the victim to recant her

allegations against him. See Commonwealth v. Pagels, 69 Mass. 

App. Ct. 607, 613 (2007) ("the jury may consider the context in 

which the allegedly threatening[, intimidating, or harassing] 

statement was made and all of the surrounding circumstances"). 

In the trove of letters sent by the defendant to the victim from 

jail while he awaited trial on the various charges stemming from 

his abuse of her between 2011 and 2015, the defendant 

consistently urged the victim not to testify against him,6

5 Gaslighting is defined as "psychological manipulation of a 

person usually over an extended period of time that causes the 

victim to question the validity of their own thoughts, 

perceptions of reality, or memories and typically leads to 

confusion, loss of confidence and self-esteem, uncertainty of 

one's emotional or mental stability, and a dependency on the 

perpetrator." Merriam-Webster Online Dictionary, 

https://www.merriam-webster.com/dictionary/gaslighting 

[https://perma.cc/Q6XW-SGTU].

6 For example, he wrote to her that "even in the Bible it 

talks about solving your legal battles before you go before a 

judge." After the victim filed for divorce, the defendant 

provided her with a written "motion to stay judgement [sic] for

divorce" and asked her to file it in court. He explained that 

reconsidering divorce was her "best opportunity to not have to 

testify."
10

admonished her for meeting with prosecutors,7 and coached her on 

what to say in court.8 Although not explicitly threatening, the

letters included repeated references to the victim as both the 

reason for his incarceration and prosecution and the only 

potential key to his freedom. We are satisfied that in the 

context of the defendant's longstanding pattern of controlling 

and abusive conduct toward the victim, the defendant's words

would have made a reasonable person fearful of the consequences 

of refusing to do as the defendant directed. See Commonwealth

v. Carvalho, 88 Mass. App. Ct. 840, 845-846 (2016) (even where 

defendant's words are not expressly threatening, intimidating, 

or harassing, his behavior may fall within meaning of 

intimidation). 

Alternatively, "harassment" under the witness intimidation 

rubric requires proof of an act that "seriously alarms or 

annoys" a person "and would cause a reasonable person . . . to 

suffer substantial emotional distress." G. L. c. 268, 

7 When he learned that the victim provided his letters to 

the prosecutor, the defendant sent a letter criticizing her for 

"run[ning] straight to the [assistant district attorney] with 

[them]," and told her, "that's the problem with your actions, 

you don't think about the long term consequence."

8 In one letter discussing "this intimidation charge," the 

defendant writes, "It might help if you let people know you 

don't feel afraid or intimidated." In another, he tells the 

victim not to object to his request to obtain her medical 

records.
11

§ 13B (a). See Commonwealth v. Middleton, 100 Mass. App. Ct. 

756, 763-764 (2022). "[E]motional distress that is merely 

trifling or passing is not enough to satisfy this element, but 

must be markedly greater than that commonly experienced as part 

of ordinary living." Commonwealth v. Robinson, 444 Mass. 102, 

108 (2005). There was ample evidence in this case that the 

victim suffered years of sexual, physical, and emotional abuse 

by the defendant in a controlling domestic relationship from 

which she was struggling to extricate herself.9 The defendant's 

letters to the victim from jail plucked the same emotional 

strings that led her to recant in prior cases, and he played on 

the victim's embedded insecurities in his repeated attempts to 

convince her to abandon this prosecution.10 The victim testified 

that the defendant's barrage of letters and telephone calls "was 

driving my head crazy . . . repeating the same thing when 

9 As we have acknowledged previously, "[d]omestic violence 

is a complex phenomenon that results in psychological and 

physical injuries to a significant number of persons each year 

. . . . The pattern typically exhibited by battered women . . .

includ[es] their tendency to leave and then return to the 

batterer many times before finally ending the relationship" 

(quotation and citation omitted). Commonwealth v. Gordon, 87 

Mass. App. Ct. 322, 333 n.13 (2015).

10 Sounding a theme woven into virtually every 

communication, in one such letter the defendant wrote, "your 

life's a mess and you need to get it back in order," and advised 

the victim to "go back to church" to "make amends," while 

simultaneously professing his love for her and insisting, "this 

is my last chance, our last chance, to stop this [prosecution]."
12

expecting a different result and a different result wasn't going 

to come." She also testified that the communications were so 

upsetting that she refused to accept them for a time, and that 

she ultimately came to understand why her family and friends 

were fearful for her. Considering the victim's testimony in 

context, we are satisfied that the defendant's efforts to 

convince her to foil the prosecution against him for abusing her 

caused the victim "serious alarm or annoyance" and would have 

engendered "substantial emotional distress" in a reasonable 

person. See Robinson, supra.

In sum, we are satisfied that the evidence was sufficient 

under both the "intimidation" and "harassment" theories of 

witness intimidation, either one of which would have supported

the defendant's conviction.

ii. Telephone call between the defendant and his father.

The Commonwealth introduced in evidence, over the defendant's 

objection, a portion of a recorded telephone call the defendant 

made to his father from jail on September 5, 2015, while 

awaiting trial (September 5 call).11 The defendant argues that 

his father's statements were inadmissible because they included 

11 The judge instructed the jury not to "take anything that 

[the father] said for the truth of the matter."
13

an opinion that the victim was being truthful.12 We disagree. 

Contrast Commonwealth v. Spencer, 465 Mass. 32, 48 (2013)

(detectives' opinion that defendant is guilty and lying and 

"police reiteration of accusations by third parties that the 

defendant has denied" are inadmissible). The father's 

statements provided context for the defendant's admissions that

"I have no defense against this" and "I haven't been able to own 

up to it yet because of this phone thing." See Mass. G. Evid. 

§ 801(d)(2)(A) (2022); Commonwealth v. Mejia, 88 Mass. App. Ct. 

227, 238 (2015) (statement of second speaker on telephone call 

properly admitted to provide context to conversation). 

Particularly where the jury were instructed that they could not 

consider the father's statements for their truth, we discern no 

error in the judge's implicit determination that the probative 

value of the father's statements outweighed any prejudice to the 

defendant, and no abuse of discretion in the admission of those 

statements. See Commonwealth v. Robertson, 489 Mass. 226, 237–

238, cert. denied, 143 S. Ct. 498 (2022) (witness's opinion 

12 Although the defendant does not identify with specificity 

which of the statements were inadmissible, it appears that he is 

challenging the following statements made by the father at 

various points during the call: "[Y]ou need to face up to what 

you've done"; "[Y]ou use this marital privilege as a shield and 

I disagree"; "In talking to [the victim], I don't believe that 

[she was pressured]. . . . That's not where I feel things are 

at"; and "I'm sure there's more than one side. But I don't 

think you own up to your side either."
14

testimony did not require reversal where judge gave appropriate 

curative instruction); Spencer, supra (weighing probative value 

versus prejudice of proffered evidence entrusted to trial 

judge's broad discretion). 

b. Postconviction discovery. Prior to filing his motion 

for a new trial, the defendant requested discovery of the 

victim's medical records and funds for experts to review them. 

"Discovery in the context of a new trial motion under Mass. R. 

Crim. P. 30 (c) (4), 378 Mass. 900 (1979), is not a matter of 

right. The motion and affidavits must first establish a prima 

facie case before discovery is available." Commonwealth v. 

Arriaga, 438 Mass. 556, 569 (2003). Here, counsel's affidavit 

averred only that the discovery was necessary to explore the 

effects that medication and mental illness "may have had" on the 

victim's behavior and memory and the reasons she required nasal 

surgery in April 2015. Where the defendant advanced no more 

than a hypothetical and speculative basis for his request, we 

discern no abuse of discretion in the judge's denial of the 

motion. See Commonwealth v. Camacho, 472 Mass. 587, 598 (2015)

("In order to prevail on a posttrial discovery motion, a 

defendant must demonstrate that it is reasonably likely that 

such discovery will lead to evidence possibly warranting a new 

trial"). 
15

c. Motion for a new trial.13 The defendant raised numerous 

claims of ineffective assistance of counsel in his motion for a 

new trial. Where, as here, the motion judge was the trial 

judge, "[r]eversal for abuse of discretion is particularly 

rare." Commonwealth v. Rice, 441 Mass. 291, 302-303 (2004), 

quoting Commonwealth v. Schand, 420 Mass. 783, 787 (1995). To 

prevail on a claim of ineffective assistance of counsel, "the 

defendant must show that the behavior of counsel fell measurably 

below that of an ordinary fallible lawyer and that such failing 

'likely deprived the defendant of an otherwise available, 

substantial ground of defence.'" Commonwealth v. Prado, 94 

Mass. App. Ct. 253, 255 (2018), quoting Commonwealth v. 

Saferian, 366 Mass. 89, 96 (1974). Reviewing the denial of the 

defendant's motion for a new trial for a significant error of 

law or abuse of discretion, see Commonwealth v. Wright, 411 

Mass. 678, 682 (1992), S.C., 469 Mass. 447 (2014); Commonwealth

v. Sorenson, 98 Mass. App. Ct. 789, 791 (2020), cert. denied, 

142 S. Ct. 107 (2021), we discern no reason to disturb the 

judge's ruling.

13 As we have noted, the judge decided the defendant's 

motion after a nonevidentiary hearing; he outlined his reasoning 

in a thoughtful and detailed written memorandum. On appeal, the 

defendant does not contend that the judge, who also presided 

over the trial, erred in failing to take additional evidence on 

the motion.
16

i. Telephone calls. As we have discussed, defense counsel 

objected to the introduction of the September 5 call between the 

defendant and his father on the ground that it included improper 

opinion evidence. In his motion for a new trial, the defendant 

argued that counsel should have raised additional objections to 

that call, and also should have objected to the scope of the 

redactions made to the recordings of other telephone calls 

played for the jury. We disagree. 

A. Verbal completeness. "When a party introduces a 

portion of a statement or writing in evidence the doctrine of 

verbal completeness allows admission of other relevant portions 

of the same statement or writing which serve to 'clarify the 

context' of the admitted portion" (citation omitted). 

Commonwealth v. Carmona, 428 Mass. 268, 272 (1998). See Mass. 

G. Evid. § 106(a) (2022). The defendant contends that the 

September 5 call was redacted improperly to omit his statement, 

"I have not instigated any of this," and as a result the 

conversation failed to establish that he disputed the victim's 

allegations.14 Even assuming that the redacted portion of the 

14 The following exchange from that call was not part of the 

evidence presented to the jury:

Defendant: "Yeah. Everything we say from now until the 

end of my trial is going to be recorded."

Father: "I believe that."
17

conversation was admissible under the doctrine of verbal 

completeness, the defendant's statement that he had not 

"instigated any of this" was not a denial of guilt of the crimes 

charged against him. Nor was it inconsistent with the victim's 

version of several of the incidents, in which she described 

starting arguments that the defendant then escalated. Thus, we 

fail to discern in this instance how "better work might have 

accomplished something material for the defense." Commonwealth

v. Satterfield, 373 Mass. 109, 115 (1977). 

The defendant also argues that two recorded telephone 

conversations with the victim were redacted in a manner that 

allowed the prosecutor to argue that he was trying to convince 

the victim to provide false information to the court by way of a 

letter from her therapist in order to "get the [2015] charges 

dropped," or allowed the jury to infer that he was urging the 

victim to give false testimony. We need not linger on this 

argument. Even assuming, without deciding, that trial counsel 

fell below acceptable standards in failing to object to the 

redactions at issue, see Saferian, 366 Mass. at 96, because

these calls pertained only to the witness intimidation charge on 

which the defendant was acquitted, there was no resulting 

Defendant: "So how it [sic] that we're going to talk and 

talk about this situation? I told you that, you know, I have 

not instigated any of this."
18

prejudice to the defendant. See Commonwealth v. Duffy, 62 Mass. 

App. Ct. 921, 923 (2004) ("difficult to find that the admission 

of the evidence caused prejudice where defendant was acquitted 

on two of three indictments" [quotation and citation omitted]).

B. Adoptive admissions. "The theory of adoptive 

admissions is straightforward: Where a party is confronted with 

an accusatory statement which, under the circumstances, a 

reasonable person would challenge, and the party remains silent 

or responds equivocally, the accusation and the reply may be 

admissible on the theory that the party's response amounts to an 

admission of the truth of the accusation" (quotation and 

citation omitted). Commonwealth v. Braley, 449 Mass. 316, 320–

321 (2007). See Mass. G. Evid. § 801(d)(2)(B) (2022). At 

trial, the Commonwealth presented the defendant's statements in 

telephone calls with the victim on April 3 and April 6, 2015, as 

adoptive admissions to hitting her in the face and breaking her

nose.15 Trial counsel did not object to the introduction of the 

15 In the first call, the defendant told the victim, "you 

can't be talking on the phone like this, baby," in response to 

her statement, "you fucking knocked me right in the nose." The 

second challenged conversation contained the following exchange:

Victim: "No it's not, but you broke my nose."

Defendant: "Okay."

Victim: "Plain and simple."

Defendant: "Okay."
19

calls or the Commonwealth's theory. In his motion for a new 

trial, the defendant claimed that counsel was ineffective 

because his statements were not adoptive admissions. It was 

within the judge's discretion to conclude that the defendant's

response, "Okay," to the victim's statement that he had broken 

her nose and his statement, "I'm not going to really get into 

this because we're on the phone," when she referred to her need 

for surgery to repair the broken nose, were admissible as 

adoptive admissions by the defendant. Because the calls were 

properly admitted at trial, it was not ineffective for counsel 

to fail to object to them. See Commonwealth v. McWilliams, 473 

Mass. 606, 615 (2016) (counsel not ineffective for failing to 

file motion to suppress that would have been unsuccessful);

Commonwealth v. Leng, 463 Mass. 779, 783 (2012) ("An objection 

to such properly admitted evidence would not likely have been 

successful. Counsel's omission, therefore, does not constitute 

ineffective assistance of counsel").

C. Additional objections. The defendant further argues 

that counsel was ineffective for failing to object to the 

Victim: "I had to go into surgery."

Defendant: "Right, and I'm not going to really get into 

this because we're on the phone here. . . ."
20

admission of a portion of his April 11, 2015 telephone call with

the victim about the October 2014 incident in which he broke the 

victim's nose.16 He contends that the victim's statements were

irrelevant because that incident did not involve sexual assault 

charges; he also claims that they contained multilevel hearsay 

and were unduly prejudicial. We disagree. The conversation was

admissible for the nonhearsay purpose of showing the defendant's 

state of mind, the victim's state of mind, and the nature of 

their relationship. See Commonwealth v. Javier, 481 Mass. 268, 

281 (2019) ("evidence may be relevant if it only 'throw[s] 

light' on an issue" [citation omitted]); Commonwealth v. 

Cruzado, 480 Mass. 275, 280 (2018) ("out-of-court statement not 

offered for its truth is not hearsay"). Moreover, the 

defendant's claim of undue prejudice is belied by his acquittal

on the relevant charge of witness intimidation. See Duffy, 62 

Mass. App. Ct. at 923.

16 During the call, the victim indicated that she no longer 

wished to speak to the defendant's attorney because she was 

concerned that her statement that "we hit each other" would be 

"use[d] against [her] in court." In response, the defendant 

stated, "[the attorney] told me a lot of stuff that you said 

about me . . . . You told her a lot of other stuff, too. . . . 

You know, it's the same kind of things that you told my parents, 

that -- that, you know, that you make people believe that I'm 

using drugs all the time and that when I use drugs that I want 

to rape you, so. And that's what you told my attorney."
21

Lastly, the defendant argues that his attorney should have 

objected to the admission of telephone calls on September 4 and 

5, 2015, between the defendant and his father because the calls

contained inadmissible opinions expressed by his father.17 We 

are not persuaded. In both calls, the father's statements were 

relevant and admissible to provide context to the defendant's 

admissions during the same conversation. See Commonwealth v. 

Mullane, 445 Mass. 702, 711 (2006) (statement offered to provide 

context for conversation between detective and third party); 

Mejia, 88 Mass. App. Ct. at 238. Moreover, the jury's verdicts 

acquitting the defendant on five of the charges against him 

17 In the first call, the father stated that the defendant 

"put[] [himself] in a worse position" by calling the victim and 

"running."

The father's statements in the second call were more 

extensive:

"I won't believe either side 100 percent . . . . Her story 

is consistent. . . . What she's saying is that is what 

happened. She's not going to lie about it, you know. . . . 

I've told you, you know, what she says and what you say and 

they're completely different. . . . And that's why we have 

told [sic] I think you need some help. You need some 

counseling. . . . You know, she consistently says that you 

take drugs and that's not that hard to believe. . . . It 

means that you're not in your right mind at those 

times. . . . I try and give you my best advice . . . and 

what you've done is ignore these things and get deeper and 

deeper in. You get yourself so deep in I can't help you 

anymore. . . . But you're trying to save [a marriage] 

that's not worth saving. . . . You tell me . . . we're in 

such love. That is not love, Bobby. I hate to tell you."
22

suggest that any unfair prejudicial effect of that evidence did 

not outweigh its probative value. See Commonwealth v. Walker, 

442 Mass. 185, 201 (2004) (no indication that jury improperly 

applied evidence where defendant acquitted of charge to which 

evidence did not pertain). Because the statements were 

admissible, counsel was not ineffective for failing to object to 

their admission. See Leng, 463 Mass. at 783. 

ii. Prosecutor's closing argument. The defendant asserts 

that trial counsel should have objected to various portions of 

the prosecutor's closing argument. First, he contends that two 

statements by the victim to the defendant used in the 

prosecutor's closing -- that an associate of the defendant's 

attorney told "her what to say . . . to get the charges dropped" 

and that she was unable to "breathe through one side of [her 

broken] nose" -- were hearsay, and that the prosecutor 

improperly argued them for their truth. This argument fails 

because the defendant did not object to the admission of those 

statements, and therefore they were admitted without limitation 

and could be argued accordingly. See Carmona, 428 Mass. at 271 

("Hearsay, once admitted, may be weighed with the other 

evidence, and given any evidentiary value which it may possess"

[citation omitted]).

Next, the defendant claims that the prosecutor misstated 

evidence by arguing that a particular medical record showed that 
23

the victim was compliant with her mental health medications 

except when the defendant took them for his own use. We are 

satisfied that the record to which the prosecutor referred 

supported her argument. 

The defendant further asserts that the prosecutor 

improperly stated that there was no evidence of the victim 

taking drugs that altered her memory or perception of the 2015 

reported abuse. The victim was impeached on cross-examination 

with a prior statement that she had ingested Klonopin and was 

"in a blackout" the day of the incident, but there was no 

substantive evidence that she took her medications that day. 

See Commonwealth v. Mandeville, 386 Mass. 393, 400 (1982) ("It 

is well established that a witness may explain, modify, or 

correct damaging testimony that was elicited during crossexamination").

Finally, the defendant claims that the prosecutor made a 

knowingly false statement when she argued, "Nothing that this 

defendant has said in a call or a letter about his version of 

events can explain the marks on [the victim] from that incident 

or from any of the other incidents."18 Viewing the prosecutor's 

statement in the context of the entire closing, however, the 

18 The defendant stated during a telephone call that the 

victim caused her own injuries by punching herself in the face 

and smashing her head against a floor, a mirror, and a wall. 
24

prosecutor was not denying that the defendant had offered 

explanations for the victim's injuries, but rather was 

suggesting that his explanations were implausible. See

Commonwealth v. Hoime, 100 Mass. App. Ct. 266, 279 (2021) (no 

impropriety in prosecutor's argument to effect that defendant's 

version of events "didn't make any sense").

In sum, we agree with the judge's conclusion that there was 

nothing improper in the prosecutor's argument. Where there was 

no error in the prosecutor's closing, it is axiomatic that there 

was no basis for trial counsel to object to it. We therefore 

conclude that his failure to do so was not ineffective. 

Furthermore, even if any of the challenged portions of the 

argument were improper, any risk that the defendant was 

prejudiced as a result of those flaws was obviated by the 

instructions to the jury regarding the limited purposes of 

closing arguments. See Commonwealth v. Reyes, 483 Mass. 65, 77 

(2019) (no miscarriage of justice arising from prosecutor's 

closing where defense counsel did not object, judge provided 

general instruction that closing arguments were not evidence, 

and relevant statement "was discussed only in passing"). 

iii. Medical records and testimony. The defendant further 

contends that trial counsel was ineffective for not moving to 

redact certain medical records or object to improper hearsay 

testimony of medical personnel. We agree that the parts of the 
25

medical records describing incidents as "assaults" and 

containing statements from the victim that identified the 

defendant as the perpetrator, as well as similar information 

imparted in the testimony of medical providers, were 

objectionable. See Commonwealth v. Dargon, 457 Mass. 387, 396 

(2010) (printed language on SANE forms "such as 'assault' and 

'assailant'" should be redacted); Commonwealth v. Arana, 453 

Mass. 214, 231 (2009) ("a patient's statement of . . . by whom

[injuries were] inflicted, generally is not admissible . . . 

even if made to a physician"). 

Although this showing satisfies the first prong of the 

Saferian test, the defendant's argument falters on the test's 

second prong. Trial counsel's strategy was to discredit the 

victim as an untruthful person. To that end, he extensively 

cross-examined the victim on the various versions of events she 

provided to police, offered medical records showing that the 

victim had "lied" to hospital staff, and forcefully argued to 

the jury that "[the victim] lied to everyone she's spoken to." 

Because the defense focused on the victim's credibility rather 

than the form or details of her complaints about the defendant's 

conduct, trial counsel's failure to object to evidence that the 

victim reported that the defendant had abused and raped her did 

not prejudice the defendant. See Commonwealth v. Medeiros, 456 

Mass. 52, 62 (2010) (counsel not ineffective despite failure to 
26

seek redaction of medical records that named defendant and 

contained "sexual assault" diagnosis where defense was that 

victim fabricated incident). That the defense was at least 

partially successful -- the jury acquitted the defendant of 

several counts of sexually assaulting the victim -- bolsters our 

conclusion. See Commonwealth v. Kolenovic, 471 Mass. 664, 674 

(2015) (in context of ineffective assistance claim, test is one 

of "reasonableness [not] perfection"). 

iv. Police testimony. Finally, the defendant argues that 

trial counsel was ineffective for failing to object to hearsay 

testimony from a police detective. The detective testified that 

in June 2015 a patrol officer found the victim suffering from 

head trauma and medical personnel later treated her for "a 

temporal fracture." He also verified that the victim reported 

assaults in August 2008, February 2011, October 2014, June 2015, 

and July 2015, and that there were police reports pertaining to 

those incidents. Absent a showing of relevancy not made here, 

such testimony was inadmissible. See Commonwealth v. Stuckich, 

450 Mass. 449, 457 (2008) (unnecessary and improper to describe 

investigative process in sexual assault trial). We agree that

trial counsel therefore should have objected to it. See 

Commonwealth v. Sullivan, 478 Mass. 369, 376 (2017) (use of 

hearsay testimony from police "carefully circumscribed" and is 
27

admissible only if police knowledge is relevant to issue in 

case). 

Once again, however, the defendant's ineffective assistance 

claim fails for lack of any showing that he was prejudiced by 

counsel's error. The defendant did not dispute at trial that 

the victim was injured or that she made reports to police. 

Instead, he attacked her truthfulness regarding how the injuries 

occurred and whether the assault allegations were fabricated.

The detective's testimony was brief, undetailed, and cumulative 

of other evidence. We discern no prejudice from its admission.

See Commonwealth v. Barbosa, 463 Mass. 116, 127, 129-130 (2012)

(hearsay testimony from detective should not have been admitted 

but no prejudice to defendant because admitted testimony was 

cumulative).

3. Conclusion. We affirm the judgments and the orders 

denying the defendant's postconviction motion for discovery and 

funds and motion for a new trial.

So ordered.